Protective Orders Defense
Defending Your Rights in San Antonio
After citizens are arrested on suspicion of domestic violence, Texas law allows the local criminal district attorney's office or a private lawyer representing the complainant to petition the court for a Protective Order prohibiting the accused from entering the family's residence, possessing a firearm, or having contact with the complainant or even the accused's children.
In a hearing to determine the merits of a Protective Order allegation, the applicant must prove by a preponderance of the evidence that family violence occurred and is likely to occur in the future. Protective Orders are generally issued for two years from the date of the order.
A potential applicant can seek a Protective Order even if there has not been a related domestic violence criminal case or arrest. A Protective Order lawsuit is filed independently from any pending criminal case, but can have a substantial effect on your criminal record. Aside from the very restrictive conditions of a Protective Order, improperly defended Protective Orders can also result in an "Affirmative Finding of Family Violence."
Affirmative Finding of Family Violence
The collateral consequences of an Affirmative Finding of Family Violence include:
- Automatic enhancement of a misdemeanor family violence charge to a felony
- Restriction on your ability to own a firearm under federal and state law
- An effect on your ability to be named a joint managing conservator of a child in a divorce proceeding
- Deportation if you are a non-citizen
- An order requiring you to pay monthly spousal maintenance of up to $2,500 upon divorce
Even though they are civil in nature, many Protective Orders are prosecuted by the local criminal district attorney's office. This is significant because, in most cases, this is the same office that would be prosecuting you for any alleged crimes that may have occurred in relation to the Protective Order. Additionally, a skilled San Antonio criminal defense attorney needs to properly educate you on maintaining your Fifth Amendment right against self-incrimination to prevent the prosecutor from eliciting evidence from you that could help prove currently pending criminal charges or serve as the basis for new charges.
ONE TEXT MESSAGE CAN VIOLATE A PROTECTIVE ORDER
The terms Restraining Order and Protective Order are often used interchangeably, but have very different consequences. The main difference is that a violation of a Protective Order is a crime. If it is alleged that you have violated the terms of a Protective Order, you can be immediately arrested. Sending one or more text messages is a common alleged violation. As you can see, even if you do not necessarily have an objection from staying away from the complainant, you need a San Antonio criminal defense lawyer to help you navigate the complicated waters of domestic violence.
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